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Of

a specific performance, or a performance in specie, and the court would not, like a court of law, in effect, let you off the contract on payment of damages, but would compel you to convey the estate itself to the purchaser upon his paying the purchase-money to you. This equity is founded upon the principle, that the court considers that as actually performed which is agreed to be done; so that the instant after you have entered into a contract to sell an estate, the court considers the estate as belonging to the purchaser, and the purchasemoney as belonging to you, and so, vice versa. course, as the court compelled you to perform the contract, there were no damages to pay. But this has lately been altered, and a court of equity can now not only enforce a specific performance of a contract, but can besides award damages, either in addition to, or in substitution for such specific performance.* This was not a blending of the powers of the two courts, but the creation of a new power to grant at once specific performance and damages, or damages in substitution of specific performance. I tried in vain to prevent it, as it was not called for, and would lead, in every case, to a contest for damages-on account of delay, for example -which would be conducted with more pertinacity, and with greater expense, than the real question between the vendor and the purchaser. Another innovation which it would be difficult to defend, is vesting in the equity judge, without a jury, and without the consent of the parties, the power of assessing the damages.† These, in my opinion, are not improvements of the law, as it has been administered beneficially for centuries. The terms specific performance and action for breach of

* 21 & 22 Vict., c. 27, s. 2; founded upon the 3d Report of the Chancery Commission; 1856.

+21 & 22 Vict., c. 27, s. 5.

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contract, will now, I hope, be familiar to you. I shall frequently be compelled to use them in the course of my correspondence.

The remedy in equity, I must remark, is open to a seller as well as to a buyer, although a seller merely wants the purchase-money; so that if a vendor would prefer getting rid of the property, and receiving the whole of the purchase-money, to keeping the estate, and taking his chance of the amount of damages at law, he may apply to equity for a specific performance. But equity will not interfere in every case. A man acting without good faith cannot require the extraordinary aid of the court, but will be left to his remedy at law, where his bad conduct will have its full operation with a jury. And in many cases equity will not interfere, although the applicant or plaintiff, as he is called, has acted bona fide; for instance, where the estate has by surprise or mistake been sold at an undervalue. Thus where the known agent of the seller bid for the estate at an auction on behalf of the purchaser, and other persons present, thinking that he was bidding as a puffer on the part of the seller, were deterred from bidding, the court, on the ground of surprise, refused to interfere against the seller, who resisted the sale.

Equity also looks to the substantial intention of the parties, whereas the courts of law adhere more strictly to the letter of the contract. Thus, if an estate is described in a particular of sale to be in good repair, and it turns out to be in bad repair, the seller cannot enforce the contract at law; but equity, if the purchaser is not in want of immediate possession, so that there is time to do the repairs before possession is essential to him, will compel him to take the house upon being allowed a sufficient sum to repair it: if a man sell a leasehold estate, as having 70 years to run, and the

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term is only 68, the purchaser will in equity be decreed to take the estate with an abatement; at law, the contract cannot be enforced by the vendor: again, if the time is stipulated for the performance of the contract, that stipulation is of the essence of the contract at law; whereas in equity, if the time was not material, or the party complaining was aware of the cause of the delay when he entered into the agreement, and the other party is not wilfully lying by, equity will compel a specific performance in the same manner as if the party had been ready to perform his agreement by the time stipulated; but parties may expressly stipulate that time shall be of the essence of the contract, so as to be binding even in equity. If the seller cannot make a title to the whole estate sold, the purchaser is not at law compellable to take the part to which a title can be made; but in equity, if the part to which a title cannot be made is not necessary to the enjoyment of the rest, equity will compel him to take it, and will allow him a proper abatement out of the purchase-money. In one case a man purchased a house on the north side of the Thames, which was supposed to be in Essex, but which turned out to be in Kent, a small part of which county happens to be on the other side of the river. The purchaser was told he would be made a churchwarden of Greenwich, when his object was to be a freeholder in Essex; yet he was compelled to take the house. These instances, and others to which I shall in subsequent letters draw your attention, will sufficiently show the difference, in these respects, between law and equity. The latitude which a court of equity allows itself in enforcing agreements against the letter, and, perhaps, in some cases, contrary to the spirit of the contract, may be narrowed by the express stipulation of the parties. This should always be attended to.

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The ground upon which equity proceeds in the cases which I have mentioned is, that the agreement can be performed in substance. A purchaser cannot be compelled, even in equity, to take an undivided part of an estate as where the seller and a third person are tenants in common, so that each is entitled to only an undivided moiety-if he contracted for the entirety; nor a leasehold, however long the term in it may be, or a copyhold instead of a freehold. And if you were to buy at an auction a mansion-house in one lot, and farms, &c., in other lots, equity would relieve you from the whole contract if no title could be made to the mansion-house. A man bought a house and about four acres of land, and the seller could not make a title to a small strip of land between the house and the road, so that people in passing could look in at the window: he was not compelled to complete his purchase even with a compensation.

From the different rules of law and equity it frequently happens that both courts are resorted to with relation to the same contract. I will give you an instance of this: Suppose that you had bought an estate of Tompson, and the agreement was to be performed by a day named, and that he made out his title, and was ready to convey to you at the time, but your money was not ready, Tompson might bring an action against you for damages for breach of the contract; but if the day appointed was not material, you might file a bill against him for what is termed an injunction, and a specific performance; and equity would accordingly enjoin him not to proceed further with the action, and would compel him to convey the estate to you upon payment of the purchase-money, but you would not be allowed to be guilty of further delay in payment of the purchasemoney.

If you sell an estate, your title to which proves bad, or even doubtful, and you cannot cure the defect, equity of course cannot relieve the purchaser, unless he choose to take the title with all its faults; but the purchaser may recover damages against you at law. However, where a man is without fraud incapable of making a good title, a purchaser can even at law only recover what are called nominal damages-a shilling, for instance. I daresay that you think it high time this Letter should end. You must, however, preserve your patience, or I shall never make a lawyer of you.